South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Sandbag rules changed Bonding now required
August 17th, 2016

By Jake Lucas

As property owners and managers on Isle of Palms await a decision on whether the wave-dissipating devices in place now will be allowed to stay up, they also face new rules for getting sandbags to protect against the waves.

The new emergency order rules include a bonding requirement to cover the cost of removal and a 120-day time limit, which can be extended only if property owners submits a viable plan for renourishment.

The City of Isle of Palms is currently orchestrating a roughly $15 million beach renourishment project. Assistant City Administrator Desirée Fragoso said the earliest that project would begin is winter 2017.

The Department of Health and Environmental Control issued eight emergency orders on July 28, all to properties in the Beachwood East area of Wild Dunes. Cassandra Harris, a spokeswoman for the department, said in an email that emergency orders can be made at any time, and, “Due to the nature of emergency orders, these types of requests are reviewed expeditiously by the department.”

DHEC can permit property owners to use sandbags in emergency situations when a structure is severely threatened by erosion, but the bags sometimes end up as trash on the beach or in the water. The new rules require property owners to get three written quotes for the cost of the bags’ removal within 15 days of getting an emergency order to ensure that sandbags are not abandoned on the beach. DHEC uses those quotes to determine the amount of the required bond, and the property owner has 30 days to get the bond and provide a copy of it to the department.

Michael Safdi owns a house on Beachwood East in Wild Dunes and recently went through the new process to get an emergency order. He said the bonding requirement is ill-defined and unnecessary because property owners were already responsible for removing and cleaning up sandbags, which he said they were diligent about doing.

The new rules were approved by the legislature this year and are based on recommendations from a Blue Ribbon Committee on Shoreline Management, which was appointed by the DHEC Board and spent two years evaluating beachfront management in the state.

The changes went into effect at the end of June, and on July 8, DHEC ordered the inventors of the so-called “wave dissipation system” in place at three locations on Isle of Palms to take the devices down on July 28, the final date of a study period to evaluate them.

DHEC had previously told the creators of the devices that they could stay up in the time between the end of the study period and when the DHEC board issues a final decision on whether they can be used in emergency situations in the fall. Traditional seawalls have been banned in the state since 1988. The wave dissipation devices are made up of vertical plastic pylons and horizontal PVC tubes stacked in between the pylons. They’re designed to protect against big waves that drive erosion while allowing sand and water to flow in between the horizontal tubes and simulate the flow of a natural beach.

DHEC’s ruling that the walls must come down at the end of the study period came after the South Carolina Environmental Law Project threatened to sue on behalf of two other organizations, arguing that the devices prevented sea turtles from nesting on a handful of occasions.

DHEC also sought the advice of the Department of Natural Resources on the matter, which said that the devices may have gotten in the way of sea turtles attempting to nest in those instances, but the amount of trouble the devices gave turtles is comparable to what they’d face in any highly eroded area. Lawyers representing the owners of the properties where the devices are installed, as well as a lawyer representing the device’s inventors, have challenged the order to take them down.

In their requests for a review, the attorneys argue that the evidence that the devices prevented turtles from nesting is lacking, and that the devices are not blocking turtles from suitable nesting sites because the area beyond them is highly eroded or else made up of sandbags and building foundations.

The DHEC board has yet to say whether it will hear that challenge, but in the meantime, it places a legal stay on the department’s order, keeping the devices where they are. Lawyers for Beachwood East properties in Wild Dunes say in their requests that their clients have invested about $60,000 in the wave dissipating-devices. Lawyers for Seascape Villas and Ocean Club Villas said in their requests that those communities have invested over $200,000 and over $350,000 respectively in the devices.

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